Legal Guide to Domestic Violence Orders in the Northern Territory

Legal Guide to Domestic Violence Orders in the Northern Territory

Content provided by Women's Legal Services NSW

This guide shows how people can obtain protection orders from the court to protect them from technology-facilitated stalking and abuse. In the Northern Territory these protection orders are called domestic violence orders.

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1.1. Legislation

The Domestic and Family Violence Act 2007 (NT) (‘the Act’) is the piece of legislation (law) in the Northern Territory that allows the courts to make orders protecting people from domestic and family violence.

A person who is experiencing domestic violence (‘protected person’) may apply to the Magistrates Court for a Domestic violence order (‘DVO’) or have a DVO made by the police. A DVO can protect a person by ordering the person against whom the DVO is made (‘defendant’) not to commit further acts of domestic violence against the protected person.

It is important to note that a DVO is a civil order, meaning it is not a criminal charge. However, an application for a DVO may be accompanied by related criminal charges and criminal penalties may apply if a DVO is breached.

The police or the Magistrates Court may make a DVO against the defendant for the protection of the protected person if it is satisfied that there are reasonable grounds for the protected person to fearthe defendant committing of a domestic violence offence against them. It does not matter whether the protected person denies having fear, so long as a reasonable person would be fearful in the circumstances.

In deciding whether to make the order, the police or court will considers the safety and protection of the protected person to be of paramount importance.

Where can I find this information in the Act?

Please see sections 18 and 19 of the Act.

1.2. Can technology-facilitated stalking and abuse be a form of domestic violence?

The short answer is yes; technology-facilitated stalking and abuse may be a form of domestic violence.

Technology-facilitated stalking and abuse can be a form of domestic violence where a person who is in a domestic relationship with the person does, attempts or threatens to commit any of the following:

Conduct causing harm

For example, emailing a sex-tape of the victim to her family

Damages property

For example, infecting a person’s computer or device with spyware or malware

Intimidates – this includes harassment, conduct that causes a reasonable apprehension of violence or property damage, any conduct that is unreasonably controlling or conduct that causes a person mental harm. For example:

Regular and unwanted contacting of the person, including by mail, phone, text messages, fax, the internet or another form of electronic communication

Giving or sending offensive material to the person, such as sending emails with pictures of torture attached

Putting a person under surveillance in a way that is unreasonably controlling

Being unreasonably controlling by demanding access to a person’s emails and text messages and demanding that all phone calls be on speaker phone so they can be monitored

Stalking is also prohibited in the Act; however, the definition is narrow and does not appear to cover technology-facilitated stalking (e.g. tracking a person through GPS on their phone). It is more focused on physical stalking such as following a person or watching, loitering around or approaching where a person lives, works or frequents. Digital stalking should, however, be captured by the wide definition of intimidate.

Further, a DVO can also be sought against a person if they get another person to do any of the above things for them.

For example, a person pays a service to covertly install surveillance devices in the other person’s house. The person who paid for the installation then monitors the other person and uses private information about her movements and activities to intimidate and harass her

Where can I find this information in the Act?

Please see sections 5, 6, 7 & 17 of the Act.

1.3. What is considered a domestic relationship?

Technology-facilitated domestic violence can happen to anyone who was in a domestic relationship.Domestic relationship is defined broadly to include:

People who are/were related

For example, mothers, fathers, siblings, aunties, uncles, grandparents, cousins, children, step-children, step-parents, in-laws and those considered related according to Aboriginal traditions or practices

People who are/were married or in a de facto relationship (including same-sex couples)

People who are/were engaged or betrothed

People who are /were dating, even if casually and even if the relationship is not sexual

People who are /were in a carer relationship, regardless of whether they live together

For example, either the carer or dependant

Where a person has/had custody or guardianship of the other

Where a person ordinarily or regularly lives or has lived with the other person

For example, housemates and ex-housemates

Where a person ordinarily or regularly lives or has lived with a relative of the other person

For example, a housemates relative

Note: If there is technology-facilitated stalking and abuse, but there was no ‘domestic relationship’, a person may still be able to apply for a personal violence restraining order (see s 82, Justices Act 1928 (NT).

Where can I find this information in the Act?

Please see sections 9 - 12 of the Act.

1.4. Who can apply for a Domestic Violence Order?

An application for a DVO may be made by:

The police

A person seeking protection (if over 15 years old)

An adult acting on behalf of and with the consent of the person or child seeking protection (e.g., their legal representative or social worker)

The police can make a DVO where it is needed urgently to ensure a person’s safety. This DVO is called an interim DVO. This is a temporary order that lasts until the matter goes to court to be decided.

For example, when the police are called out to a domestic violence incident

Applying for a DVO

To apply for a DVO for their (or their child’s) protection, they can go to the police and make a statement. The police can make an interim DVO in some circumstances.

If the police refuse to act or a person feels uncomfortable going to the police, they can apply to the Court for a DVO (see the link to the Domestic violence order Application Form at the bottom of this guide). They must include a Statutory Declaration with their application (a statement declared to be true that sets out information including the nature of the relationship and why they are seeking protection).

They can get legal advice from a community legal centre (e.g. Central Australia Women’s Legal Services), NT Legal Aid or a private lawyer on applying for a DVO.

Where can I find this information in the Act?

See sections 28 & 41 of the Act.

1.5. How can a Domestic Violence Order protect a person from technology-facilitated stalking or abuse?

The conditions in a DVO depend on the particular circumstances of the matter.

A DVO can impose orders it considers necessary or desirable. This includes:

Restraints on the defendant

Orders imposing obligations on the defendant that will ensure they accept responsibility for the violence and which encourages them to change their behaviour

Orders it considers just or desirable in the circumstances

On the current DVO application form, there are set conditions the applicant can apply for (or amend) which may assist in prohibiting technology-facilitated domestic violence. These include, orders restraining the defendant from:

Contacting or approaching the protected person/s

This includes via text messages, email, letters, social media or phone calls

Harassing, threatening or verbally abusing the protected person/s

Assaulting or threatening to assault the protected person/s

Damaging or threatening to damage the property of the protected person/s

Remaining at any place the protected person/persons may be living, working or visiting

The applicant for the DVO can also apply for ‘other’ conditions that are specific to their situation and which will make the protected person feel safe. For example:

DVO “other” order: suggested wording to cover ‘revenge porn’ situationsThe defendant is prohibited from directly or indirectly publishing, or sending by email or through other electronic communication, photographs or videos of the protected person engaging in sexual activities or in which the protected person appears naked or partially naked.

A defendant must follow the conditions of a DVO. If the defendant breaks any of the DVO conditions (called breaching or contravening the DVO), it is an offence and the police can lay charges against the defendant (see section 1.8 below).

Where can I find this information in the Act?

See section 21 of the Act.

1.6. How long does a Domestic Violence Order last?

A DVO is in force for the period stated in it.

For example, it may state it lasts for 12 months.

Where can I find this information in the Act?

See section 27 of the Act.

1.7. What if a person breaks the conditions of a Domestic Violence Order by engaging in technology-facilitated stalking or abuse?

When a person does not obey the conditions of a DVO, this is called a breach or contravention of the DVO.

It is an offence to contravene a DVO or an interim DVO.

All contraventions should be reported to the police so they can investigate (see 1.8 below for evidence gathering tips).

Maximum penalty: 400 penalty units or imprisonment for 2 years.

Note: in some circumstances where the defendant has previously been found guilty of a breach DVO, the court will record a conviction and sentence the person to imprisonment for at least 7 days (see s 121).

Where can I find this information in the Act?

See sections 120 – 122 of the Act.

1.8. Gathering evidence to prove a technology-facilitated stalking or abuse

Sometimes it can be difficult to prove technology-facilitated stalking or abuse. Some tips for gathering evidence to show a DVO is necessary or a DVO has been contravened include:

Do not delete text messages, voicemail messages, photos

Try and save any evidence to a computer/USB flash drive

Use screenshots (see www.take-a-screenshot.org) and save the image as the date & time it was taken. If taking screenshots of websites, always include the URL in the screenshot

Keep a diary or voice notes of incidents including dates and times

Consider giving police written permission to access your phone, computer, Facebook, email account etc. if a matter is being investigated

Note: certain conduct in relation to technology-facilitated stalking or abuse may constitute a criminal offence, which police can investigate and, if there is sufficient evidence, charge and prosecute. Please see the Legal Guide on Relevant Criminal Offences and Legal Guide to Surveillance Legislation.

1.9. Further help and information

LEGAL ADVICE: At any stage, it is important for a person to obtain legal advice about their situation and the options available to them. Please see the legal services directory in the Support page for referrals to the nearest legal service.

1.10. Terminology

Language of 'Victim' vs 'Survivor'

Some women who are experiencing, or who have experienced, domestic violence use the term 'victim' of domestic violence to describe themselves. Others believe the term 'survivor' of domestic violence more accurately reflects their experience.

Whilst acknowledging that each woman's experience is unique and individual to her circumstances, for consistency, these guides will refer to women who are experiencing, or who have experienced, domestic violence as 'victims' of domestic violence.

Gender and Language

While domestic violence can happen in many circumstances (including in non-heterosexual relationships), in the vast majority of reported domestic violence cases men are the perpetrators and women the victims.

For this reason these guides use 'he' to refer to perpetrators and 'she' to refer to victims. This is not intended to exclude other situations.

Definitions

Criminal Offence (or offence)A criminal offence is an offence against the State. It is commonly referred to as 'breaking the law'.

Summary offenceLess serious offences (such as minor theft), are known as summary offences. Summary offences usually have a maximum penalty of no more than 2 years imprisonment or are not punishable by imprisonment at all.

ChargeWhen a person is charged with an offence, it means that the police have formally accused that person of committing an offence.

ConvictionWhen a person is convicted of an offence, it means that person has either pleaded guilty to committing the offence, or a court has found that person guilty of committing the offence.

Penalty unit

A penalty unit describes the amount payable for a fine.

Penalty units are used instead of dollar amounts because the rate for penalty units is indexed for inflation and may therefore change from time to time.

The Department of Treasury and Finance set the dollar amount for one penalty unit; this value is updated on 1 July each year. As of 1 July 2015: one penalty unit = $153. Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $7,650.

DISCLAIMER: The use of technology-facilitated violence is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.

Legal content provided by Women’s Legal Service NSW, as part of the ReCharge: Women’s Technology Safety project in partnership with WESNET and DVRCV, funded by the Australian Communications Consumer Action Network (ACCAN).